in the court of the civil judge, sonitpursonitpurjudiciary.gov.in/judgement/09-16 title appeal...

HIGH COURT FORM NO.(J) 2 HEADING OF JUDGMENT ON ORIGINAL APPEAL

IN THE COURT OF THE CIVIL JUDGE

TEZPUR, SONITPUR

Present: Smti Munmun B.Sarma

Civil Judge

Tezpur, Sonitpur

16th September ‟2017

TITLE APPEAL NO. 02/2015

Sri Lakhidhar Das

Son of (L) Moean Das

Resident of Goroimari Kaibarta Chuburi,

Mouza- Goroimari,P.S- Tezpur

District – Sonitpur, Assam --- Appellant/ Defendant

-Vs-

(1) Sri Thanuram Das

(2) Sri Sabharam Das

(3) Sri Jiban Das

(4) Sri Nripen Das

(5) Sri Bhupen Das

All are sons of Prafulla Chandra Das

All are resident of village Halleswar Devalaya

Mouza- Halleswar, P.S-Tezpur,

District – Sonitpur, Assam.

--- Respondents/ Plaintiffs

This appeal u/O.41 r.1 and 2 r/w s. 96 CPC against impugned judgment and

decree dated 23/12/2014 passed by the learned Munsiff, No.1, Tezpur in Title

Suit No.15 of 2008, decreeing the suit of the respondents/plaintiff, came for

final hearing on 17-08-2017.

Counsel for Appellant :

Counsel for Respondent :

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JUDGMENT

1) This appeal has been preferred against the Judgment and Decree

dated 23-12-2014, passed by the learned Munsiff No.1, Tezpur, in Title Suit

No. 15 of 2008, whereby the plaintiff‟s suit was decreed. The respondent as

plaintiff instituted the Title Suit against the defendant seeking declaration of

right, title and interest and conformation of possession and for consequential

relief of perpetual injunction.

Case of the Plaintiff:

2) The plaintiffs claimed that they are the absolute owner and possessor

of the suit land, which was purchased from Mohan Chandra Das, and Lakhi

Kanta Das vide registered sale deed No.2130/1977. They have been in

occupation of the suit land since then except the months when the land was

under attachment in the proceeding u/s 145 CrPC. The defendant had

instituted a false claim before the Executive Magistrate over the suit land and

vide order dated 12-07-2004 1 Bigha 1 Katha 5 Lessas of land was attached.

During trial, Court observed that the land belonging to the plaintiff was

entirely different from the land that was in the possession of defendant and

after survey of land proceeding was dropped without declaring the possession

of any party. Pertinent to mention that Addl. District Magistrate vide order

dated 29-03-2006 stated that the schedule land should be handed over to first

party Lakhidhar Das. Against this order, plaintiff filed a revision but it was

dismissed vide order dated 07-02-2008.

3) The plaintiff further claimed that taking undue advantage of the order

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passed by ld. Addl. District Magistrate, the defendant managed to take

symbolic possession of the land and also attempted to enter upon the same

but the plaintiff resisted it. Plaintiff has consistently possessed the land

physically since the attachment was removed and vacated. The defendant

instituted a proceeding u/s 107 CrPC against plaintiff‟s father before the Addl.

District Magistrate, Sonitpur and vide order dated 25-04-2006 issued a show

cause notice to plaintiff‟s father. The said proceeding ultimately ended upon

contest. Thus, being aggrieved by the all the above stated circumstances, the

plaintiff filed the suit with the following prayer:

(a) declaration of their right, title and interest and confirmation of

possession over the suit land ;

(b) for perpetual injunction restraining and prohibiting the

defendants, his men and agents etc. from encroaching upon

the suit land ;

(c) all cost of the suit ;

(d) any other relief / relief the Court may deem fit and proper.

Case of the Defendant:

4) The defendant submitted written statement and prayed that there is

no cause of action; that the suit is barred by limitation; the suit is bad for non-

joinder of co-pattadar. It is also claimed that suit is not maintainable u/s 34 of

the Specific Relief Act. It was claimed that the plot of land purchased by the

plaintiff with the following boundary: North – Lakhidar Das, South – Hara

Kanta, East – Nanda Bora, West – NT Road. There is no road under northern

boundary of the land purchased by the plaintiff. This suit has been filed with a

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false claim that the southern boundary of the suit land is covered by the road

and land of defendant No.1. In fact, 3 kathas 7 Lessas of land belonging to

the same dag No. & patta No. is owned and possessed by the defendant and

is adjacent to the suit land on its southern boundary. It was further stated

that on application dated 29-03-2006 by the defendant, the Ld. Addl. District

Magistrate when found that the land for which proceeding u/s 145 CrPC was

instituted remained under attachment though the proceeding was dropped

declaring possession of the defendant over the disputed land, passed the

order directing the police to hand over of the disputed land to the defendant

and accordingly, the police put defendant in possession of the same. The

defendant denied all the claims of the plaintiffs that he tried to take forcible

possession of any portion of the suit land belonging to the plaintiff. In view of

the above, it was prayed that the suit be dismissed with the compensatory

cost of Rs.3,000/- against the plaintiff.

5) After going through the available materials, the learned Court of

Munsiff framed the following ISSUES –

1) Whether the suit is maintainable?

2) Whether the suit is barred by limitation?

3) Whether the suit is bad for non-joinder of necessary parties?

4) Whether the plaintiff has any right, title and interest over the suit land?

5) Whether the plaintiffs are entitled to get a decree as prayed for?

6) To what relief/reliefs is the plaintiff entitled to?

6) After hearing both the sides and going through the materials available

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on the record, the ld. Munsiff decreed the suit of the respondent / plaintiff.

Being aggrieved with the Judgment and decree passed by the trial court the

Appellant/ defendants preferred this appeal.

Grounds for Appeal:

7) It was prayed by the appellants that while deciding the Issue No.1 the

leaned trial Court without going through the statements made in written

statement arbitrarily & illegally held that there is no specific averments under

what circumstances of facts and law the suit is not maintainable and decided

the said issue wrongly against the defendant/appellant. From Ext.1 it clearly

reveals that the northern boundary of land purchased by the plaintiffs there is

land owned by and belonging to defendant out of the same dags & patta, but

the schedule-land shows northern boundary as road & defendant‟s land, which

proves that the plaintiff has filed the suit giving wrong boundary and as such

should have hold that the suit is hit by Order 7 Rule 3 of CPC and not

maintainable. That the ld. Trial Court should have held that the present suit is

barred by limitation u/Art.58 Limitation Act because the PW-1 himself has

stated in his cross-examination that the defendant had tried to occupy the suit

land in the year 2004 and the plaintiff filed this suit in the month of March,

2008. The ld. trial court decreed the suit holding that the suit is governed by

Art.113 and & not by Article 58 of the Limitation Act. That while deciding

Issue No.3, the ld. Trial Court should have hold that the other pattadar are

necessary parties to the suit and non-joinder of them as a party is fatal.

8) The ld. trial court also misread the evidence on record while deciding

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Issue No.4. In Ext.1 the northern boundary is shown as land of defendant but

in the schedule of plaint (suit land) the northern boundary is shown as road

and land of defendant. The ld. Trial Court ignored this fact. That the ld. trial

court misread and misapplied laws involved & without properly discussing the

evidences. Hence, it was prayed that the judgment & decree be set aside.

DISCUSSION, DECISION AND REASONS THEREOF:

9) I have heard both sides minutely and have gone through the oral and

documentary evidences available on record and also the pleadings. I have also

gone through the impugned judgment by Ld. Munsiff. During argument

appellant-side has agitated against the issue nos.1, 2 & 4, hence, these issues

has been visited herein below, alongwith resultant issue no.5 & 6.

ISSUE NO.4: Whether the plaintiffs have right, title and

interest over the suit land?

Decision of Ld. Munsiff in the impugned judgment:

10) The plaintiff No.5 examined himself as PW1 & deposed that father of

the plaintiffs purchased vide sale deed No.2130/1997 dated 16-05-1977, land

measuring 2 Bigha 10 lessas of Dag No. 3 (old), 3 (new) of PP No.88 (which

became new PP No.32) & 1 Bigha 1 Katha 5 Lessas of Dag No. 9 (old), 10

(new) under PP No.24 (new 38) bounded in the North- road and defendants

land, South – Harabhuyan Mouzadar, East – Nanda Bora and pukhuri, West-

National Highway & took possession. The plaintiff got right, title and interest

over the suit-land & mutated their names in the revenue records and since

then they have possessed the suit land by paying land revenue. However, the

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defendant is trying to forcible possess the suit land by taking undue

advantage of his dag and patta number. PW1‟s evidence was supported by

PW-2 Prafulla Das & PW-4. The plaintiff exhibited the Sale Deed as Ext.1,

which is admitted by the defendant. The sale-deed shows boundary as North

– defendant‟s land, South- Hara Bhuyan Mouzadar, East – Nanda Bora and

West – NT Road and pond. Land revenue receipt exhibited as Ext.6(1) to 6(5),

Certified copy of old Jamabandi of PP No.4 of suit land is exhibited as Ext.3,

certified copy of old Jamabandi of PP No.88 of suit land is exhibited as

Ext.3(1), certified copy of jamabandi of PP No.10 as Ext.4, certified copy of

Patta No.32 as Ext.5. The plaintiff examined Kanoongo as PW-5 who proved

Ext.3 and Ext.3(1).

11) Ld. Trial Court further observed that the claim of the plaintiff about

purchase of land measuring 3 bigha 1 Kathas 15 lessas and possession over

that is fortified by the admission of the defendant. The defendant also

admitted that land purchased by the plaintiff is en-fenced by bamboo fencing

since time of purchase and the plaintiffs possess it and that the plaintiffs and

the defendant are possessing different plot of land. Hence, there is no dispute

in respect of purchase of total land measuring 3 bigha 1 katha 15 lessas land

by plaintiff within the boundary mentioned in the sale deed and it is also not

disputed that plaintiff is possessing the said land purchased vide Ext.1.

Moreover, police report [Ext.7(5)] reveals that plaintiffs are in possessing the

land purchased by them. Thus, it can be said that the plaintiffs are the owner

of total land measuring 3 bigha 1 katha 15 lessas.

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12) The defendant in his written statement and in evidence as DW-1 stated

that suit land is different from the land purchased through Ext.1 & the land

purchased by the plaintiff is bound in the North by the land of the defendant.

The suit land is different from the land purchased vide sale deed as the

boundary stated are different. There is no road in the northern side and pond

in the eastern boundary as stated by the plaintiff in this suit. Ld. Trial Court

perused the boundaries of the schedule-land and the land mentioned in Ext.1

& observed that the suit-land has following boundaries: North- road &

defendants land, South – Harabhuyan Mouzadar, East – Nanda Borah and

pukhuri, West – National highway. In Ext.1 there is no mention of any road in

the northern side and pond in the eastern side. During cross-examination PW-

1 admitted that there is no mention about the road and pond in the northern

side and eastern side respectively but in reality, there were a road and pond.

He mentioned that the road runs outside the bamboo fencing. They are in

continuous possession of the land bounded by bamboo fencing. Trial Court

held that the defendant failed to impeach the credibility of the PW-1. PW-2

supported evidence of PW-1 & defendant failed to impeach his credibility too.

PW-4 deposed that the suit land is in possession of the plaintiffs and in the

eastern side of the suit land there is a public pond and in the northern side of

the suit land there is an approach road to the pond and the land of the

defendant situated in the northern side of the road.

13) Statement of Lakhikanta Das in case u/s 145 of CrPC as Ext 7(7) where

he admitted that there is a road and pukhuri in the northern and eastern side

respectively. Even the defendant as DW1 during cross examination admitted

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that in the case filed u/s 145 of CrPC he had stated that there is a Kuccha

approach road to the police tank. Trial Court observed that it is a settled law

that facts admitted need not be proved & even though there is no mention

about the road in the northern side and pond on the eastern side, in the Sale

Deed, but on the basis of the admission of defendant in Ext 7(7) it is held that

there is an approach road to the northern boundary of the suit land and a

public tank to the eastern boundary as admitted by the defendant. The

admission by the defendant in Ext 7(7) fortifies the evidence of PW 1, 2 and

PW 4. In fact the boundary described in Ext. 7 is the boundary of the land of

plaintiff as purchased vide Ext. 1. Vide order dated. 27/03/07 Addl. District

Magistrate was of the view that the opposite party and the first party were in

separate possession of the separate land under separate boundary and

attachment was vacated. Accordingly the Issue no 4 is decided in affirmative

in favour of the plaintiffs.

Argument forwarded by both sides:

14) The appellant-side argued that Ext.1 makes it absolutely clear that

boundary is different from the suit-land as in the north of Ext.1 boundary the

defendant has been shown, whereas, in the suit-land it is claimed that there is

a road too. It was also argued that in the 145 case the land was measured &

it revealed that the land of the plaintiff is different from the one claimed in the

145 proceeding. In fact, the plaintiffs are illegally trying to dispossess the

defendant/appellant from the suit-land. According to the respondents the

Trial Court has extensively and correctly discussed the issue and settled it in

favour of the respondents.

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My decision and reasons thereof:

15) I have gone through the impugned judgment and it is seen that the ld.

Munsiff has discussed the evidences in-depth, both oral and documentary.

Though Ext.1 reveals that the northern boundary only mentions „land of

accused‟ however, as rightly observed by ld. Munsiff, the defendant has infact

stated in his statement in the proceeding u/s 145 CrPC that the disputed land

has a road on its northern boundary and a pond in the eastern boundary.

There is nothing on record that reveals that the plaintiffs are seeking

declaration of right, title and interest over any piece of land that belongs to

the defendant/appellant or is not covered by the Ext.1. In view of the above

discussions, decision of ld. Munsiff in Issue No.4 is not interfered with.

ISSUE NO.1: Whether the suit is maintainable?


16) Ld. Munsiff held that there is no specific averment in the WS as to

under what circumstances of facts and law the suit is not maintainable. The

pleading of the parties do not disclose any procedural defects barring the

jurisdiction of this Court to try the suit. Hence, it was held that the suit is

maintainable and Issue No.1 was decided in the affirmative.


17) The appellant-side argued that Ext.1 clearly shows that the northern

boundary of land purchased by the plaintiffs/respondents there is land owned

by the defendant/appellant, however, the schedule-land shows the northern

boundary as road & defendant‟s land. This proves that the plaintiff has filed

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the suit giving wrong boundary, and as such, the suit is hit by O.7 r.3 CPC &

therefore, not maintainable. It was also argued that when possession is not

with the plaintiff, a declaratory suit without prayer for recovery of possession

is not maintainable. In support of his argument ld. appellant counsel cited the

decision of Shri Khabiruddin Mazumdar & Ors. Vs. Shri Mojahid Ali,

1991 (1) GLJ 225 where the Hon‟ble Gauhati High Court held that when the

suit-land is not in possession of plaintiff then declaration cannot be granted

without prayer for consequential relief of recovery of possession. Hon‟ble

Allahabad High Court in Lachhimi Nath Pathak And Anr. vs Bholanath

Pathak, AIR 1964 ALL 383 held that –

“Mere allegation in the plaint that the plaintiff was in

possession of the property on the date of the suit or that the

order under Section 145. Cr. P. C. was wrong could not entitle

the plaintiff to claim a mere relief of declaration and

injunction. He should have claimed a relief for possession.”

Hon‟ble Supreme Court of India in Ram Saran And Anr. vs Smt. Ganga

Devi, 1972 SC 2685 held that when the defendant is in possession of some

of the suit properties & the plaintiffs have not sought possession of those

properties, then the suit becomes not maintainable if only mere declaration

that they are the owners of the suit properties is prayed for. Hon‟ble Calcutta

High Court in Sri Radha Gobinda Jew & Ors. Vs. Smt. Kewala Devi

Jaiswal & Ors., AIR 1974 Calcutta 283 subscribed this view.


18) I have gone through the written-statement and seen that the

defendant/ appellant has taken the plea of non-maintainability of the suit u/s

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34 Specific Relief Act and not u/O.7 r.3 CPC, as claimed in the appeal memo.

S.34 Specific Relief Act reads as follows –

Discretion of court as to declaration of status or

right.

Any person entitled to any legal character, or to any right

as to any property, may institute a suit against any person

denying, or interested to deny, his title to such character or

right, and the court may in its discretion make therein a

declaration that he is so entitled, and the plaintiff need not

in such suit ask for any further relief:

Provided that no court shall make any such declaration

where the plaintiff, being able to seek further relief than a

mere declaration of title, omits to do so.

In the present suit, the plaintiffs claim that they are in possession of the suit-

land and have only prayed for „declaration of possession‟, whereas, the

defendant claimed that the suit-land is in his possession and therefore, the

plaintiff should have made a prayer for „recovery of possession‟. Perusal of

record PW-1 mentioned during cross-examination that the land for which the

defendant/appellant has filed the 145 proceeding is in his possession and that

both the lands are separate lands (the suit-land and the 145 proceeding land).

However, as seen from the evidences, the disputed land appears to be part of

the land purchased by the plaintiffs/respondents but the possession lies with

the defendant/appellant. Hence, it was essential for the plaintiffs/respondent

to seek recovery of possession. Hence, in light of s.34 Specific Relief Act

decision of ld. Munsiff in issue no.1 is reversed & it is held that the suit is

not maintainable.

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ISSUE NO.2: Whether the suit is barred by limitation?


19) Ld. Trial Court observed that the plaintiff has filed the suit claiming,

right, title and interest and confirmation of possession. A suit to obtain any

declaration other than declaration covered by Article 56 and 57 of Limitation

Act, is covered by Article 58 of Limitation Act and limitation is 3 years. As the

plaintiffs/ respondents have filed a suit seeking right title interest and

confirmation is declaratory suit along with the further relief of injunction, it is

not a pure suit of declaration governed by Article 58 Limitation Act. Hence,

Article 113 Limitation Act will govern the present suit seeking right title

interest and conformation of possession and injunction, where period of

limitation will be 3 years. Under Article 113 Limitation Act the suit can be filed

within three years from the date of any subsequent cause accruing as well.

20) Trial Court further observed that there is allegation that the defendant

falsely laid claim over a portion of the suit-land and tried to dispossess the

plaintiff by filing an application u/s 145/146 CrPC & vide order dated 12-07-

2004, 1 Bigha 1 Katha 5 Lessa land was attached by Executive Magistrate.

The plaintiff filed revision before Hon‟ble Session Judge & vide judgment

dated 07-02-2008 revision was dismissed observing the parties may approach

to Civil Court regarding dispute of possession. Though plaintiff admitted

during cross-examination that the defendant tried to occupy the suit land in

the year 2004 but the cause of action for the suit arose on 27-03-2006 when

in proceeding u/s 145 CrPC, the Magistrate observed that the land in

possession of the plaintiff is different from the land in possession of the

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defendant and dropped the proceeding. Again on 29-03-2006 when the

Magistrate ordered to hand over the disputed land to the 1st party & also on

07-02-2008, when the Hon‟ble Sessions Judge observed that if the plaintiffs

have grievances about possession he can file suit in competent court. All these

subsequent developments can be treated as subsequent cause of action, from

which period of limitation of 3 years. Thus, ld. Munsiff held that the suit is not

barred by limitation & Issue No.2 was favour of the plaintiff.


21) The appellant-side argued that Declaratory suit limitation period is 3

yrs. Art.113 Limitation Act has been wrongly applied in this case by Munsiff.

Art.65 Limitation Act would have been applicable (12 yrs) if recovery of

possession was also prayed for. In the present case on declaration has been

sought and therefore limitation is 3 years. The defendant in 2004 claimed

right over the property 145 proceeding, thus, the cause of action & limitation

started then but suit filed in 2008.


22) I have gone through the impugned judgment and the pleadings. The

plaintiffs/respondents filed the suit for declaration of right, title and interest of

the plaintiffs over the suit-land and for conformation of possession and for

consequential relief of perpetual injunction. Thus, this is a clear-cut

declaratory suit with consequential relief and therefore, Article 58 Limitation

Act applies. The Trial Court erred in holding that it falls under the category of

“Any suit for which no period of limitation is provided elsewhere in this

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Schedule”. Thus, the limitation period is 3 years from when the right to sue

first accrues. Thus, it appears that the suit is actually barred by limitation.

Hence, decision of ld. Munsiff in issue no.2 is reversed.

ISSUE NO.5: Whether the plaintiffs are entitled to decree as

prayed for?

ISSUE NO.6: To what relief relief the parties are entitled to?


23) Ld. Munsiff held that the plaintiff is entitled to the decree as prayed for

& for declaration of their right, title, interest and confirmation of possession

over the suit land. The plaintiff is also entitled to permanent injunction. The

plaintiff is not entitled to any other relief. Thus, Issue no. 5 was decided in

affirmative in favour of the plaintiff & Issue no. 6 was decided in negative

against the plaintiff.


24) Considering the fact that decision of ld. Munsiff in Issue Nos.1 & 2 was

reversed and it was held that the suit is not maintainable in view of s.34

Specific Relief Act & that the suit is time-barred, I am of the opinion that the

plaintiffs/respondents are not entitled to a decree or any other reliefs. Hence,

decision of ld. Munsiff in Issue No.5 is reversed & Issue No.6 is not

interfered with.

25) In view of the above discussions and decisions, impugned judgment

and Decree dated 19-05-2012, passed by the learned Munsiff No.1, Tezpur, in

Title Suit No. 20 of 2005 is partly set-aside & the appeal is partly allowed.

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The parties will bear their own costs. Prepare a decree accordingly.

The appeal is disposed of on contest.

Send down the Case Record, alongwith a copy of this judgment to the

ld. Court.

Given under my hand & seal of the Court on the 16th September‟ 2017.

(Munmun B.Sarma)

Civil Judge

Tezpur, Sonitpur

Dictated and corrected by me.

Dictation taken and transcribed be me:

(J. K Muru)

Steno.

(Munmun B.Sarma)

Civil Judge Sonitpur, Tezpur

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ANNEXURE

(A) Plaintiff’s Witness

i) PW-1 Sri Bhupen Das

ii) 2.PW-2 Sri Parafulla Das

iii) 3.PW-2 Sri Bhaben Bhumij

iv) 4.PW-2 Sri Darpan Nath

v) 5.PW-5 Chandra Prabha Bharali

(B) Plaintiff’s Exhibits

i) Ext 1 is sale deed.

ii) Ext 2 is the certified copy of main petition u/s 145 Cr.P.C.

iii) Ext 1(A) signature of defendant as identifier.

iv) Ext 3 is the Certified copy of old jamabandi of P.P No.24 of suit

land.

v) Ext 3(1) is the certified copy of old jamabandi of P.P No.88 of

suit land.

vi) Ext 4 is the certified copy of jamabandi of P.P No.10 .

vii) Ext 5 is the certified copy of Patta No.32.

viii) Ext 6(1) to 6(5)- Ext are the revenue receipt.

ix) Ext 7 is the Case record Misc Case No.5/145/04.

x) Ext 7(1) to 7(3) are the orders. Ext 7(4) is the main petition.

xi) Ext 7(6) is the written statement of the opp.party/ plaintiff.

xii) Ext 7(5) is the report of police.

xiii) Ext 7(7), 7(8) and 7(9) are evidence of Lakhidhar Das,

Lakhikanta Das Mohan Das respectively.

xiv) Ext 7(10) is the evidence of this plaintiff.

xv) Ext.7(11) and Ext 7(13) is the report of Circle Officer and map of

suit land respectively.

xvi) Ext 7(12) is the report of the Mandal.

xvii) Ext 7(14) is the citha of dag No.3 and 10.

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xviii) Ext 7(15) is the petition No.99

xix) Ext 8 is the case record of Cr. Revision 18(S-2)2006.

xx) Ext 8(1) is the copy of Judgment.

Defendants Witness

i) DW-1 Sri Lakhidhar Das

ii) DW-2 Sri Suren Gogoi

Defendants Exhibits

i) Ext A copy of Non FIR case 98/06( proved in original)

(Munmun B.Sarma)

Civil Judge

Tezpur, Sonitpur

in the court of the civil judge, sonitpursonitpurjudiciary.gov.in/judgement/09-16 title appeal...

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